"People
aren't getting the whole story on
their HMOs or their doctors
from the state of California." -
Hillarie
Levy,whose daughter died after her
cancer was misdiagnosed.
Grieving
Crusader: Hillarie Levy in front of a photo of her daughter,
Robyn Libitsky, who died this year at age 29. Kaiser
Permanente's
lawyer says she's bent on vengeance. Others say she may have
found
a serious problem with a state law.

A mother whose
daughter died after Kaiser physicians
missed her cancer
is fighting to change a law that let the HMO report only one of the
practitioners
to the state.
By Debora Vrana
Times Staff Writer

October 23,
2005

During the last
five months of 1999, Robyn Libitsky
went to Kaiser Permanente
13 times with complaints of piercing back pain, only to be misdiagnosed
and sent away with Tylenol, a prescription for sleep aids, physical
therapy
and an X-ray to the wrong part of her back.

By the time
Libitsky was diagnosed with Ewing's
sarcoma, a rare fast-growing
cancer, it was too late. She died last February at 29.

Before she
died,
Libitsky brought a malpractice
complaint against Kaiser.
In May 2002, arbitrators awarded her nearly $1 million in damages,
finding
that Kaiser and "its medical providers were negligent in the belated
diagnosis
and treatment of claimant's Ewing's sarcoma."

Her lawyers
contended that Libitsky's chance of
survival would have
been 65% had the cancer been detected during any of her first
half-dozen
doctor visits.

But when, as
required by law, the nation's largest
nonprofit HMO told
the Medical Board of California that arbitrators had ruled against it,
Kaiser officials chose to name just one of six doctors listed in the
decision.

Now, Libitsky's
mother, Hillarie Levy of Simi
Valley, has launched a
crusade questioning why state law allows Kaiser to decide which doctors
involved in arbitration awards will have their names forwarded to the
Medical
Board, a state agency that licenses physicians.

While Kaiser's
attorney calls her a grief-stricken
mom bent on vengeance,
others say she may have identified a serious problem with a law that
requires
healthcare providers or their malpractice insurers to report at least
one
doctor after any arbitration award.

"The law is
there
to make sure the public and
consumers are aware of
what is going on — period," said state Sen. Liz Figueroa
(D-Fremont), who
wrote legislation in 2002 requiring the Medical Board to post a
doctor's
http://robynlibitsky.kaiserpapers.info/images/disciplinary history on
its website. "If we need to remedy this by
legislative
means, we will look at that."

Kaiser said it
handled the Libitsky award properly
and unfailingly followed
the law in reporting doctors to the Medical Board. And officials there
say they cannot recall another case in which their decision about whom
to report has been questioned.

The HMO says it
always reports doctors identified by
arbitrators as
having failed to meet standards of care. In cases where the arbitrator
is less clear and more than one doctor is involved — such as
the Libitsky
case — Kaiser and its attorneys look at the facts to decide
who should
be reported, Kaiser officials said.

"We have to
piece
things together in each case and
make our best determination
on whom to report — and we take that responsibility very
seriously," said
Dr. David Lerman, legal counsel for the Oakland-based medical group's
Southern
California operation.

Libitsky, then
a
24-year-old aide to Los Angeles
County Supervisor Zev
Yaroslavsky who was planning to start law school the next year, first
went
to Kaiser's emergency room in Woodland Hills in August 1999 complaining
of severe back pain after having moved some boxes.

She was given a
narcotic pain medication and sent
home, but was back
at Kaiser two days http://robynlibitsky.kaiserpapers.info/images/later,
saying the pain was keeping her awake,
according
to a summary of the case by arbitrators Joseph S. D'Antony, a Laguna
Hills
lawyer, and Raymond Cardenas, a retired judge. A doctor told her muscle
strain takes a long time to heal, and gave her medication to help her
sleep.

After her fifth
visit, Libitsky was diagnosed with
chronic back pain
and by November had begun physical therapy, the arbitrators wrote. On
Dec.
28 a physical therapist noted a mass below the skin on her back and
told
a doctor, who ordered an X-ray. But the X-ray was taken of the wrong
part
of the back, further delaying a correct diagnosis. Finally, on Jan. 4,
a doctor ordered another X-ray; the cancer was diagnosed three days
later.

A third
arbitrator, Sherman Oaks lawyer Alan
Rushfeldt, disagreed with
the majority opinion, concluding that the evidence presented did not
prove
Kaiser doctors were negligent. Even if they were, Libitsky failed to
prove
that her cancer was of a type that could have been cured had it been
properly
diagnosed in time, Rushfeldt wrote.

Kaiser's lawyer
in the case, B. Casey Yim of Los
Angeles, said that
none of the doctors in the Libitsky case should have been reported to
the
Medical Board because it was not clear any of them had done anything
wrong.
But becahttp://robynlibitsky.kaiserpapers.info/images/use the law
requires at least one doctor to be reported in such
cases, Kaiser chose to forward the name of Dr. Shiu-Kwan Fok.

Fok, a physical
medicine and rehabilitation
specialist at Kaiser's Woodland
Hills Medical Center, had seen Libitsky in late November. He did not
return
calls seeking comment.

As a result of
Kaiser's report, the Medical Board
notes the date and
amount of the Libitsky arbitration award on Fok's record in its public
database at http://www.medbd.ca.gov . (The law also requires providers
to report at least one doctor involved in settlements or court
judgments
of more than $30,000.)

After her
daughter died this year, Levy decided to
launch her campaign
to change the law, assembling packets of information —
complete with her
daughter's high school graduation pictures — for legislators
and regulators.

"I'm just
trying
to get the word out: People aren't
getting the whole
story on their HMOs or their doctors from the state of California,"
said
Levy, 52.

Asked about the
Libitsky case, the state's top HMO
regulator said it
raised questions worth addressing. Cindy Ehnes, director of the state
Department
of Managed Health Care, said it might be time for legislation to
increase
the transparency of the malpractice arbitration process.

"As we ask
consumers to make more and more of the
decisions for their
healthcare needs, we may need to go back and take a different
legislative
tack on this," she said.

But Lerman, the
Kaiser legal counsel, points out
that current law already
provides for a second look at arbitration awards by the Medical Board's
staff, which has authority to scrutinize case records to see whether
additional
doctors involved should be reported.

Some are not
reassured by this. "The medical board
hasn't had a great
record of being aggressive about consumer complaints," said Jerry
Flanagan
of the Foundation for Taxpayer and Consumer Rights, a Santa Monica
advocacy
group active on health issues. "There's a sense the Medical Board is
too
close to physicians."

Board
investigators examined the Libitsky case but
did not recommend
that the award be noted on the records of any other doctors but Fok,
said
David Thornton, executive director of the Medical Board.

That disturbs
Figueroa, the state senator. After
reading the Libitsky
arbitration decision, Figueroa said she thought the award should be
noted
on the Medical Board record of all six doctors named.

"Kaiser is
wrong
and the Medical Board is equally
wrong," Figueroa said,
adding that she would ask the board to reconsider the case.

Because
arbitration decisions are confidential
unless released by family
members, as in the Libitsky case, it is impossible for the public to
see
how often doctors who lose such cases are not reported to the Medical
Board.

During the
2003-04 fiscal year, 60 arbitration
awards were reported
to the Medical Board, and 36 were reported the following year, board
officials
said. Kaiser accounts for about 85% of those, because the HMO requires
its members to arbitrate rather than sue over any dispute.

But physician
groups say that a doctor's legal
history isn't always
a good indicator of the quality of care given by the doctor. For
example,
these groups say, physicians with tougher cases may have more
discipline
marks on their records.

"I just don't
think the consumer gets much
information from these awards,"
said Dr. Robert Hertzka, with the California Medical Assn., which
represents
doctors.

At the Medical
Board, Thornton said he sympathized
with Levy's grief
over her daughter's death, but said doctors were human and could make
mistakes.

"It's
an extremely sad case," he said. "If I was in
her position, I'd
be doing the same thing, questioning the system. But from where I sit,
inside the system, I know physicians can make mistakes and that doesn't
mean they are bad physicians."